A Switch in Time?

Andrew P. Napolitano on Tulsi Gabbard’s abandonment of the people’s constitutional protection from spying under the Fourth Amendment.

By Andrew P. Napolitano

When she was a member of the House of Representatives, Tulsi Gabbard was a fierce defender of personal privacy rights protected by the Fourth Amendment.

She consistently opposed permitting federal agents to spy on Americans without search warrants, and she consistently voted against the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act of 1978.

Last week, Gabbard, now about to be nominated as director of national intelligence — the head of all known American spying agencies — changed her mind on Section 702 and no longer believes that the Constitution means what it says.

Here is the backstory.

After the resignation of President Richard Nixon in 1974 and the full extent of his use of the F.B.I. and the C.I.A. for domestic warrantless surveillance became known, Congress enacted Foreign Intelligence Surveillance Act (FISA).

It proclaims itself to have established the only lawful method for surveillance outside of the Fourth Amendment. This proclamation is itself a profound constitutional error, as ALL surveillance in defiance of the Fourth Amendment is unconstitutional.

That amendment was written in the aftermath of British agents executing general warrants on the colonists. General warrants were not based on probable cause of crime, but rather governmental need. And they did not specifically describe the place to be searched or the person or thing to be seized.

Rather, general warrants — issued by a secret court in London — authorized the bearer in America to search wherever he wished and seize whatever he found. The agents ostensibly were looking for proof of tax payments. They were really engaged in spying. They were looking for subversive, revolutionary materials.

After the Revolutionary War was won and the Constitution was ratified, the Bill of Rights was ratified. The Fourth Amendment in the Bill of Rights protects all “people” from unreasonable searches and seizures by the government — both law enforcement and spies. The courts have interpreted “unreasonable” to mean “without a search warrant.”

The Supreme Court has characterized spying as surveillance and surveillance as a search under the Fourth Amendment. That amendment requires search warrants issued by judges and based upon probable cause of crime demonstrated to the judges under oath and specifically describing the place to be searched or thing to be seized for the surveillance — the spying — to be lawful.

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The amendment’s drafters’ intentional employment of the word “people” makes it obvious that the amendment protects every person from every search and every seizure by anyone from the government without a warrant. It is not limited to Americans or adults or good people or people the government likes; rather, it protects all people.

In a linguistic effort to accommodate the warrant requirement and its probable cause pre-condition, the congressional drafters of FISA required that the FISA Court may issue warrants for surveillance based on probable cause not of crime but of being a foreign government agent.

The FISA Court then, on its own, morphed foreign agency into foreign personhood and then morphed that into communicating with a foreign person.

So, if you text or email or call your cousin in Geneva or an art dealer in Florence, you become a target for a FISA surveillance warrant — merely by communicating with a foreign person.

Even this loosening of Fourth Amendment protection by the Orwellian re-definition of probable cause was not enough to satisfy the rapacious appetite of the government to spy.

Thus, President George W. Bush ordered the National Security Agency — the federal government’s 60,000-person strong cadre of domestic spies in the Department of Defense, and thus subject directly to the president — to engage in warrantless spying, in defiance of FISA, and on a scale vastly greater than that which Nixon had ordered of the F.B.I. and C.I.A. in the 1970s.

Direct Affront to Fourth Amendment

When Congress learned in 2008 of the warrantless spying through the reporting of The New York Times rather than defunding it, it enacted Section 702 as an exception to FISA, and thereby made warrantless spying on foreign persons in America legal.

In a direct affront to the Fourth Amendment, Section 702 permits the NSA and its cousins in the 16 other federal spying agencies to spy without warrants on all communications involving foreign persons.

What happens when a foreign person communicates with an American?

Section 702 permits warrantless surveillance of Americans who communicate with foreign persons, permits the NSA to maintain a database of all such American persons, permits the F.B.I. to search those databases without a search warrant and, if the NSA learns of evidence of criminal behavior without a warrant, requires it to share that evidence with the F.B.I.

It gets worse.

Since Department of Justice lawyers have persuaded the FISA Court to issue warrants to spy on Americans who communicate with foreigners out to the sixth degree of communication, the NSA has contended that Section 702 also permits it to spy out to the sixth degree.

How many persons can be spied upon under the NSA’s interpretation of 702?

Call your cousin in Geneva and NSA can spy on everyone with whom you speak and everyone to whom they speak and so on, out to the sixth level of communication.

The F.B.I. reported that in 2021, it searched 3.4 million names in the NSA database of Americans who communicated with foreigners. If you take those 3.4 million out to the sixth degree of their American communications, the number grows exponentially.

You will have reached 330 million Americans before completion of the process.

In order to win the votes of Republican senators who hate the Fourth Amendment, Gabbard has told them she now favors Section 702 warrantless spying.

This is the very same Section 702 used to justify spying on Donald Trump before his election in 2016 and during his first term as president.

Gabbard apparently covets her new job more than she covets her principles. Of what value is the Constitution if federal officials abandon it?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Published by permission of the author.

COPYRIGHT 2024 ANDREW P. NAPOLITANO 

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The views expressed are solely those of the author and may or may not reflect those of Consortium News.

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